Articles Discussing New Jersey's Law Against Discrimination.

A New Jersey casino did not violate the state’s anti-discrimination law by enforcing a weight standard for its costumed beverage servers, called “BorgataBabes,” a three-judge panel of the state appellate court has ruled, upholding summary judgment for the employer as to the policy.

Professionals strive to maintain safe and welcoming workplaces for employees and guests. To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training. Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

On February 11, 2015, the New Jersey Supreme Court for the first time directly addressed and adopted the standard set forth in the U.S. Supreme Court’s 1998 decisions in Burlington Industries, Inc. v. Ellerth1 and Faragher v. City of Boca Raton2 regarding employer liability for a supervisor’s harassment. In Aguas v. State of New Jersey, the court held that an employer can defend against a claim of supervisory harassment that did not result in a tangible employment action by showing (a) it had strong anti-harassment policies and reporting procedures in place and (b) the plaintiff unreasonably failed to take advantage of those policies and procedures. The court’s ruling in this case not only provides an invaluable defense to New Jersey employers, but also serves to emphasize the importance of implementing and adhering to effective anti-harassment policies and procedures that comply with the requirements set forth by the U.S. Supreme Court.

The New Jersey Supreme Court has endorsed an employer’s right to assert its effective anti-harassment policies and remedial measures as an affirmative defense in opposition to New Jersey Law Against Discrimination (“LAD”) claims of hostile work environment sexual harassment based on the conduct of a supervisor. Ilda Aguas v. State of New Jersey, No. A-35-13 (N.J. Sup. Ct. Feb. 11, 2015).

Executive Summary: On February 11, 2015, New Jersey’s Supreme Court formally decided an important issue left open for nearly two decades concerning New Jersey’s Law Against Discrimination (LAD). In Aguas v. State of New Jersey, __ N.J. __, No. 072467 (2015), the state’s highest court definitively held that an employer can rely upon the company’s anti-harassment policy as an “affirmative defense” to an employee’s claims of negligence or vicarious liability brought under the LAD. In doing so, the Court aligns the standard for employer liability under the LAD with that set forth by the U.S. Supreme Court in its landmark 1998 decisions, Faragher v. City of Boca Raton and Burlington Indus. v. Ellerth. A copy of the decision is available here.

An employee may contract with his employer for a limitations period for filing discrimination lawsuits shorter than that which is prescribed by the New Jersey Law Against Discrimination (“LAD”) (i.e., less than the statutory two years), the New Jersey Appellate Division has held. Rodriguez v. Raymours Furniture Company, Inc., Case No. A-4329-12T3, 2014 N.J. Super. LEXIS 88 (App. Div. June 19, 2014).

On January 21, 2014, New Jersey Governor Chris Christie signed the Pregnant Worker’s Fairness Act (PWFA) after nearly unanimous support in the State Assembly and Senate. The PWFA, which took effect immediately, applies to all New Jersey employers and amends the New Jersey Law Against Discrimination (LAD) to include pregnancy as a protected category. In addition to prohibiting discrimination on the basis of pregnancy, the PWFA requires an employer to provide reasonable accommodations to pregnant employees who request accommodation upon the advice of their physician unless undue hardship on the business operations of the employer would result.

A new New Jersey law prohibits pregnancy discrimination in the workplace and requires employers to provide pregnant employees with reasonable, pregnancy-related accommodations, upon request, absent a showing of undue hardship. California and Maryland are other states that have extended their accommodation requirements to pregnant workers. The New Jersey law, signed by New Jersey Governor Chris Christie on January 21, 2014, is effective immediately. The law amends the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, which now protects 17 characteristics from discrimination.

Executive Summary: The New Jersey Department of Labor and Workforce Development has issued the final form for required gender equity posters and notices. Effective January 2014, New Jersey employers with 50 or more employees must conspicuously post a notice informing employees of their right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment.

Executive Summary: Both houses of the New Jersey legislature have passed a bill that would amend the Law Against Discrimination to include protections for pregnant workers, including reasonable workplace accommodations and unpaid leave.

The New Jersey Department of Labor has issued a new mandatory gender equity notification form. Employers with at least 50 employees, whether working inside or outside of New Jersey, must conspicuously post the notice, as well as distribute it to employees (P.L. 2012, c.57). The notification serves to put employees on notice of their rights to be free from gender inequity or bias in pay, compensation, benefits, or other employment terms and conditions under the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act of 1964, and the Equal Pay Act of 1963. Governor Chris Christie signed the anti-discrimination notice requirements in September 2012, after the bill received final legislative approval in June. The proposed form of notice was originally published and opened for public comment on January 7, 2013.

A unanimous New Jersey Supreme Court has ruled that individuals seeking punitive damages under the state Conscientious Employee Protection Act (CEPA) must present clear and convincing evidence of upper management’s actual participation in the wrongful conduct or willful indifference to the wrongful conduct. Longo v. Pleasure Productions, Inc., et al., No. A-37-11-069257 (July 24, 2013).

Executive Summary: Right after the U.S. Supreme Court issued decisions favoring employers in a variety of employee lawsuits based on federal statutes, including retaliation under Title VII, the New Jersey Supreme Court has moved that state in the opposite direction under its corresponding statutes, in Battaglia v. United Parcel Service, Inc., No.A-86/87-11 (N.J. Supreme Court, July 17, 2013). Employers who do business in New Jersey should take note.

The New Jersey Department of Labor and Workforce is proposing new workplace notification rules requiring employers with at least 50 employees to post conspicuously a notification informing workers of their rights to be free from gender inequity or bias in pay, compensation, benefits, or other employment terms and conditions under the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act, and the Equal Pay Act of 1963 on January 7, 2013. A proposed “form of notification” also was published on January 7.

Executive Summary: On Friday, September 21, 2012, New Jersey Governor Chris Christie signed into law a “Gender Pay Parity” bill that imposes a new notice posting requirement on covered employers. The governor rejected a second bill that would have increased reporting requirements for public contractors and sent the remaining two bills back to the legislature with significant amendments.